Asstt. Commissione of Income Tax 1,, Kanpur v. M/s. Indian Tanning Industries,, Kanpur

ITA 188/LKW/2012 | 2008-2009
Pronouncement Date: 23-10-2013 | Result: Dismissed

Appeal Details

RSA Number 18823714 RSA 2012
Assessee PAN AAAFI4147E
Bench Lucknow
Appeal Number ITA 188/LKW/2012
Duration Of Justice 1 year(s) 6 month(s) 10 day(s)
Appellant Asstt. Commissione of Income Tax 1,, Kanpur
Respondent M/s. Indian Tanning Industries,, Kanpur
Appeal Type Income Tax Appeal
Pronouncement Date 23-10-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 23-10-2013
Date Of Final Hearing 17-10-2013
Next Hearing Date 17-10-2013
Assessment Year 2008-2009
Appeal Filed On 13-04-2012
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A LUCKNOW BEFORE SHRI SUNIL KUMAR YA DAV JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER ITA NO.188/LKW/2012 A.Y.: 2008-09 A .C.I.T.-1 KANPUR. VS. M/S INDIAN TANNING INDUSTRIES 150 FT. ROAD JAJMAU KANPUR. PAN:AAAFI4147E (APPELLANT) (RESPONDENT) A PPELLANT BY SMT. PUJA RAJ D.R. RESPONDENT BY SHRI RAKESH GARG ADVOCATE DATE OF HEARING 17/10/2013 DATE OF PRONOUNCEMENT 23/10/2013 O R D E R PER A. K. GARODIA A.M. THIS IS A REVENUES APPEAL DIRE CTED AGAINST THE ORDER OF LEARNED CIT(A)-II KANPUR DATED 10/01/2012 FOR ASSESSMENT YEAR 2008-2009. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-II KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.25 50 095/- ON ACCOUNT OF NON-DEDUCTION OF TDS ON PAYMENT OF COMMISSION TO FOREIGN AGENT WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. [2] 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-II KANPUR HAS AND ON FACTS IN DELETING THE ABOVE ADDITION WITHOUT CONSIDERING CI RCULAR NO.7 OF 2009. 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-II KANPUR HAS NOT APPRECIATED THE SE TTLED PRINCIPLE IN RESPECT OF INTERPRETATION OF PROSPECTIVE OR RETROSPECTIVE NATURE OF AMENDMENT IN THE STATUTE AS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS GOLD COIN HEALTH FOOD PVT. LTD. (2008) 304 ITR 308 (SC) AND CIT VS MOSER BAER INDIA LTD. [2309] 315 ITR 460 (SC). 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-II KANPUR HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT THE SERVICE RENDERED BY THE NON-RESIDENT AGENT TO PROCURE ORDERS FROM FOREIGN BUYERS ARE PURELY TECHNICAL OR MANAGERIAL IN NATURE. THEREFORE THE PROVISION OF SECTION 9(1)(VII) IS CLEARLY APPLICABLE ON THE ASSESSEE. 5. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-II KANPUR HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT THE PAYMENT BY THE RESIDENT ASSESSEE IN CONNECTION WITH HIS BUSINESS IN INDIA TO A PERSON OUTSIDE THE COUNTRY IS NOTHING BUT A FEE WHICH HAS BEEN PAID BY THE RESIDENT ASSESSEE TO THE NON-RESIDENT FOR THE TECHNICAL SERVICES RENDERED BY HIM. 6. THAT THE ORDER OF THE LD. CIT (A)-II KANPUR DATED 10.01.2012 NEEDS TO BE QUASHED AND THE ORDER PASSED BY THE ASSESSING OFFICER DATED 28/12/2010 TO BE RESTORED. 7. THAT THE APPELLANT CRAVES LEAVE TO MODIFY ANY OF THE GROUNDS OF APPEAL MENTIONED AB OVE AND/OR TO ADD ANY FRESH GROUNDS AS AND WHEN IT IS REQUIRED TO DO SO. 3. THE LEARNED D.R. SUPPORTED THE ASSESSMENT ORDER WHEREAS THE LEARNED A.R. FOR THE ASSESSEE SUPPORTED THE ORDER OF THE LEARNED CIT(A). LEARNED A.R. ALSO SUBMITTED THAT THE ISSUE IS NOW COVERED IN FAVOUR OF THE [3] ASSESSEE BY THE JUDGMENT OF HON'BLE DE LHI HIGH COURT RENDERED IN THE CASE OF CIT VS. EON TECHNOLOGY (P) LTD. RE PORTED IN [2012] 246 CTR (DEL) 40. HE ALSO SUBMITTED THAT THE COPY OF TH IS JUDGMENT IS AVAILABLE AT PAGES 38 TO 48 OF THE PAPER BOOK. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PERUSED THE MATERIAL AVAILABLE ON RECORD AND THE JUDGMENTS CITED BY LEARNED A.R. FOR THE ASSESSEE. WE FIND THAT ONLY DISPUTE BEFORE US IS WHETHER TDS IS DEDUCTIBLE OR NOT OUT OF THE PAYMENT OF RS.25 50 095/- MADE BY THE ASSESSEE ON ACCOUNT OF PAYMENT OF COMMISSION TO FOREIGN AGENT. THE CASE OF THE ASSESSING OFFICER IS THAT SINCE THE TDS IS NOT DEDUCTED THIS EXPENDITURE IS TO BE DISALLOWED U/S 40(A)(IA) OF THE ACT. AS PER THE JUDGMENT OF HON'BLE DELHI HIGH COURT CITED ABOVE THE FACTS ARE THAT IN THAT CASE ALSO THE DISALLOWANCE WAS MADE U/S 40(A)(IA) OF THE ACT OUT OF PAYMENT OF SALES COMMISSION TO NON RESIDENT AND IT WAS HELD BY HON'BLE DELHI HIGH COURT THAT TAX WAS NOT DEDU CTIBLE AT SOURCE AND THEREFORE DISALLOWANCE U/S 40(A)(I) WAS NOT CALLED FOR. IN THE FACTS OF THE PRESENT CASE THIS JUDGMENT IS SQUARELY APPLICABLE AND THEREFORE RESPECTFULLY FOLLOWING THE SAME WE DECLINE TO IN TERFERE WITH THE ORDER OF CIT(A). 5. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:23/10/2013 *C.L.SINGH [4] COPY OF THE ORDER FORWARDED TO : 1. T HE APPELLANT 2. T HE RESPONDENT. 3. CONCERNED CIT 4. T HE CIT( A ) 5. DR ITAT LUCKNOW ASSTT. REGISTRAR